New Mexico Restaurant Association 10 Most Asked Restaurant

New Mexico Restaurant Association 10 Most Asked Restaurant Legal Questions www. nmrestaurants. org 505 -343 -9848

Housekeeping • • • www. nmrestaurants. org 505 -343 -9848 Everyone is being muted. Please use the chat box to ask questions. Questions will be held until the end of the presentation. The presentation is being recorded and will be sent to members via the website nmrestaurants. org login. The slide deck will be available at the same time. If you are not a member email me.

Your Host… Carol Wight CEO New Mexico Restaurant Association www. nmrestaurants. org 505 -343 -9848

Introducing… Antonia Roybal-Mack is the founder and a managing partner of Roybal-Mack & Cordova, PC. She is a dynamic powerhouse, and this is evident from her honors throughout her career as a civil lawyer. www. nmrestaurants. org 505 -343 -9848

10 COMMON QUESTIONS FOR LAWYERS By: Roybal-Mack & Cordova, PC Antonia Roybal-Mack and Amelia Nelson, Attorneys at Law

THIS PRESENTATION IS NOT A SUBSTITUTE FOR LEGAL ADVICE ON YOUR SPECIFIC SITUATION. THIS PRESENTATION DOES NOT CREATE AN ATTORNEY/CLIENT RELATIONSHIP WITH THE ATTORNEYS AT ROYBAL-MACK & CORDOVA PC. PLEASE SEEK SPECIFIC LEGAL ADVICE IF NEEDED. Lawyers Love Disclaimers

Rapid Fire Responses in 30 minutes 1. CRISES MANAGEMENT – WHEN CRIME AND THE MEDIA END UP AT YOUR DOORSTEP. LIABILITY OR NOT, HERE WE COME. 2. BUSINESS ORGANIZATION FORMALITIES – THE HANDSHAKE AND THE SHAKE DOWN. 3. THE BOX AND THE PROTECTED CLASS WITHOUT LAW – HOW THE BOX HAS CREATED A PROTECTED CLASS AND NO CASES ON SUBJECT. 4. BRAND PROTECTION AND TRADEMARKS – THE MOVIES HAVE ARRIVED, HOW TO PROTECT YOUR BRAND. 5. YOUR BIGGEST INVESTMENT – IMPORTANT FACTORS TO INCLUDE IN YOUR LEASE. 6. MEDICAL CANNABIS & DRUG TESTING – WHERE IS THE LINE? 7. APPLICATIONS AND GIG WORKERS. 8. SEXUAL HARASSMENT, ME TOO, AND HANDLING EGG SHELL EMPLOYEES. 9. PAYROLL IN THE APP AGE – CLICKING AWAY FROM TAX ISSUES. 10. LEGAL RESOURCES FOR 2020

CRISES MANAGEMENT – WHEN CRIME AND THE MEDIA END UP AT YOUR DOORSTEP. LIABILITY OR NOT, HERE WE COME. 1. RESPOND QUICKLY – CONSIDER THE STARBUCKS RESPONSE WHEN THEY DID SENSITIVITY TRAINING. 2. RESPOND PUBLICLY – HOW YOU RESPOND IS IMPORTANT. CONSIDER HOW LAVU RESPONDED TO CRIME IN DOWNTOWN BY WRITING AN OPEN LETTER TO THE MAYOR AND DELIVERING IT TO THE PRESS. 3. GET AN INDEPENDENT INVESTIGATION AS SOON AS POSSIBLE – EVEN IF YOU DID NOTHING WRONG, A SHOOTING ON YOUR PREMISES PRESUMES A LAWSUIT. SPEND THE $1, 000. 00 TO HAVE YOUR OWN INVESTIGATION CONDUCTED QUICKLY. 4. PRESERVE EVIDENCE – MAKE BACKUPS OF ALL VIDEO AND SURVEILLANCE.

Business organization formalities – the handshake and the shake down. 1. GET EVERYTHING IN WRITING – A HANDSHAKE WILL NOT PROTECT YOU IN COURT. 2. LEGAL ZOOM AND ONLINE LAWYERS MAY NOT PROTECT YOUR INTERESTS. THEY ARE BETTER THAN NOTHING, BUT THIS IS YOUR LARGEST INVESTMENT, KNOW HOW TO PROTECT IT. 3. UNDERSTAND JOINT AND SEVERAL LIABILITY WHEN WORKING WITH PARTNERS. IN SHORT IT MEANS YOU ARE RESPONSIBLE FOR YOUR PARTNERS ACTIONS EVEN IF YOU KNEW NOTHING ABOUT THEM. 4. UNDERSTAND HOW TO PROTECT YOUR PERSONAL ASSETS – MAKE SURE THAT YOU TAKE SOMETHING OFF THE TABLE EACH YEAR AND PLACE IN YOUR PERSONAL NAME.

THE BOX AND THE PROTECTED CLASS WITHOUT LAW – HOW THE BOX HAS CREATED A PROTECTED CLASS AND NO CASES ON SUBJECT. The felony box is gone, but there is no litigation yet on what that means when employers learn that they recently hired a felon. DON’T BE THE TEST CASE, INSTEAD 1. 2. 3. 4. 5. Actually review the applications submitted. Request references and follow up on those references. Create a hiring process. Request the HARDY hiring practices from RMC. Once you learn that you have hired a felon, so long as they are doing their job duties, you cannot terminate.

Brand protection and trademarks – the movies have arrived, how to protect your brand. Viacom v. Krusty Krab • Research the name you are going to use. • You can get information online before naming something. • Wine Down Wednesday • When you find something clever, protect it. Menu Items and Movie References • If you directly name something after a movie or actor, you can expect a cease and desist. • Even if you are a fan, and the reference is in good fun, expect a cease and desist. Be careful with spending money on this until you have researched it. • National Restaurant Law Center Webinar

• The fine print matters. Your biggest investment – important factors to include in your lease • Understand if you are personally guaranteeing the lease. Try to walk away from a personal guarantee if you can. • Don’t get caught up in the excitement of the location, and inspect the premises carefully. Make sure to have your own contractor inspect the premises to understand what needs replacement. You are generally taking the premises “as is. ” • Look carefully at who is responsible for HVAC, roofing, plumbing, below and above the slab. Negotiate that you only cover above the slab. • Know what your tenant improvement covers. $100, 000. 00 sounds like a lot of money until you need to hire a contractor. • Know specifically who owns your equipment when you leave. • Spend the time and money to have the lease reviewed by an attorney. Pay attention to what you are afraid of.

Medical Cannabis Employment • New Mexico signed SB 406 into law – April 2019 Changes the Lynn & Erin Compassionate Use Act (LECUA) Creates employment protections for employees who use medical marijuana Prohibits employers from taking “any adverse employment action against an applicant or employee based on conduct allowed under [LECUA]” NM Employers are generally prohibited from adverse employment action solely on the basis of using medical marijuana

Employment Applications • New Mexico joined the “Ban the Box” movement – Prohibits employers from asking about an applicant’s history of arrest or conviction in the initial employment application – Employer may inquire about and take into account an applicant’s arrest or conviction status after the initial employment application – Employer is permitted to notify the public including applicants that the law or the employer’s policy could disqualify applicants with criminal histories.

“Gig” Workers • Non-traditional or gig work consists of income-earning activities outside of traditional, long-term employeremployee relationships. • Often designated as “gig” based on the work arrangement. • Independent Contractor Status – to a point… – It is important to distinguish between employee and gig worker – Must consider: • Nature of work • Control of work • Methods of payment • Term of relationship

Sexual harassment, #me too, and handling “Eggshell” employees. 1. NOTHING HAS CHANGED IN THE LAW, THE ONLY CHANGE HAS BEEN IN PUBLIC PERCEPTION. 2. THIS IS STILL THE #1 CALL FROM RESTAURANT OWNERS IN 2019. 3. HAVE AN EMPLOYEE HANDBOOK. 4. FOLLOW AND ENFORCE YOUR EMPLOYEE HANDBOOK. 4. IF YOU GET A SEXUAL HARASSMENT COMPLAINT, INVESTIGATE IT IMMEDIATELY. 5. CONDUCT ONSITE SEXUAL HARASSMENT TRAINING. IF NEEDED ONLINE TRAINING FOR EMPLOYEES IS BETTER THAN NOTHING. 6. AN ALLEGATION OF HARASSMENT DOES NOT MEAN YOU WILL GET SUED. FOLLOW THE RULES, ACT QUICKLY, INVESTIGATE, DOCUMENT AND DEMONSTRATE THAT ONE ALLEGATION IS NOT A PERVASIVE ENVIRONMENT. SEE TORRANCE COUNTY V. FAST FOOD

Payroll in the app age – clicking away from tax issues. Not all payroll services are created equally. • There are various payroll apps from square to 17 hats and everything in between. • If you are going to use an app or service that is not a payroll company, make sure that you understand how to answer the click through questions. • Sit down with your CPA to complete the employee set up. If you don’t have a CPA, use a payroll company. • Understand what reporting is done and what is not done by the application. • Know who is holding the bag for errors. • Know the real cost, if per employee, etc. • Know who is responsible for 401 K compliance. • Section 941 taxes are trust taxes that you are personally liable for.

Legal Resources for 2020 New Mexico Restaurant Association • Legal helpline for quick answers to your questions and free 30 minute consultations • Lower hourly rate if you utilize RMC services. • You have a complete government relations team. National Restaurant Association • National Restaurant Law Center – URL – Webinars and national advocacy.

PARTICIPANT QUESTIONS! If we do not answer your question, please email it to Antonia@roybalmacklaw. com for a specific answer. If you need an in depth answer to something specific not covered here today, send questions to the same e-mail address.

Questions? Use the Chat box. www. nmrestaurants. org 505 -343 -9848

THANK YOU! Questions email: Carol Executive@nmrestaurants. org www. nmrestaurants. org 505 -343 -9848